Smith v. Simpson, 260 N.C. 601 (1963)

Dec. 11, 1963 · Supreme Court of North Carolina
260 N.C. 601


(Filed 11 December 1963.)

1. Appeal and Error § 44—

Where .tibe pleadings, evidence and record .of tbe trial affirmatively show that .plaintiff predicated Ms assertion, of a defendant's liability under tbe family purpose doctrine solely upon the basis of such defendant's ownership of the veMcle, plaintiff is in no position to complain if the court submits tbe issue upon tbe theory advanced by plaintiff.

2. Automobiles § 55—

The application of the family purpose doctrine does not depend upon .ownership of the vehicle, and a .person who is not the owner but who maintains or provides an .automobile for the use, pleasure, and convenience of his family and who controls or has the right to control its use for such purposes, .aud who actually or impliedly authorizes members of his family to so use if, is liable under the family purpose doctrine for the negligent operation of the oar by a family member, ibe he a minor or adult, a spouse, parent, brother, sister, niece, or even more remote kin, provided such person is a Iona fide member of the household.

3. Same; Parent and Child § 7—

A parent may not be held liable for the negligent operation of an automobile by his child merely by reason of the relationship, an automobile not being a dangerous instrumentality, and there being no contention that the parent knew that -the child was a reckless driver so as to present the question of liability under G.S. 1-538.1.

*6024. Automobiles § 55— Evidence held insufficient predicate for application of family car doctrine.

Evidence disclosing tihiat the child, on his own initiative, negotiated the ¡purchase of an automobile for himself, that he made the down payment ■w-ith his own money and obligated himself to pay the balance of the purchase price out of his own earnings, but that because of his minority the sellar would not accept his credit, so that, in order to consummate the sale, his father executed -the note and conditional sales contract for the balance of the purchase price and -applied for and -obtained in his own name the certificate of -title, registration card, and liability insurance, and that when the purchase was comsumiated the keys were delivered to the son and that he retained them continuously and exercised exclusive control in the use of the ear and paid for its maintenance, is held insufficient predicate for the application of the family purpose doctrine.

5. Parent and Child § 4—

If the father, with full knowledge of the facts and -acquiescence therein, permits his son to receive his own earnings and does not restrict him in the use thereof, there is an emancipation pro tanto.

6. Appeal and Error § 41—

■The admission of' incompetent evidence over objection' cannot be held prejudicial where thereafter substantially similar evidence is admitted without objection.

ISi-iaep, J., dissenting.

Pabkeb and Bobbitt, JJ., join in the dissent.

Appeal by plaintiff from Olive, J., September 1962 Session of MooRE, docketed and argued 'as case No. 452 at the Spring Term 1963.

Action to ¡recover damages for personal -injuries resulting from a three-car collision.

The 'collision occurred about 11:30 P.M., 17 October 1960, on U. S. Highway No*. 1 about 1 mile south of Vaiss in Moore County. At the point of the accident U. S. No. 1 is a 2-lame paved highway, 21 feet wide, and runs generally north and south. Plaintiff was a passenger in a 1960 Chevrolet operated by Wayne Rosser Simpson (hereinafter ¡referred to ais Wayne). The Chevrolet was registered in the name of Eddie Martin Simpson (hereinafter Mr. Simpson). Wayne was the minor son of Mr. Simpson, who was not in .the oar. Wayne -was driving northwardly, -dame up behind -a tractor-trailer and attempted to pass. When he got alongside the tractor-trailer two south-bound cans were meeting the tractor-trailer, the first a Plymouth -and the second a Pontiac operated by Thqmais Robert MoCants. The Plymouth pulled to the shoulder. Wayne side-swiped it and ran head-on into the Pontiac. *603In the collision with the Pontiac plaintiff sustained injuries which paralyzed him from his waist down.

Plaintiff instituted this action against Wayne, Mr. Simpson and Mc-Cants. Tlhe jury found that plaintiff was injured by the negligence of Wayne and awarded $20,000 damages. It found that McCants was not guilty of actionable negligence and that Mr. Simpson was not liable under the family purpose doctrine. From a judgment upon the verdict plaintiff appeals.

Bryan ■& Bryan and Wilson & Bain for plaintiff appellant.

Quillin, Buss & Worth for Thomas Robert McCants, defendant ap-pellee.

Haywood and Denny for Eddie Martin Simpson and Sarah Elizabeth Simpson, Guardian ad litem of Wayne Rosser Simpson, defendant appellees.

Mooee, J.

None of plaintiff's exceptions relating to Wayne are brought forward in his brief — they are therefore abandoned. He seeks a new trial a® to Mr. Simpson and McCants.

(1). It is contended that the loouirt erred in its instructions to the jury on the second issue relating to the liability of Mr. Simpson under .the family purpose doctrine.

Plaintiff alleges in paragraph 7 of his complaint that “Eddie Martin Simpson owned the 1960 Chevrolet . . . , . the said automobile was owned and furnished by Eddie Martin Simpson for the use, pleasure, and convenience of his family; and that the defendant Wayne Eosser Simpson, who was a member of the family of Eddie Martin Simpson . . ., was permitted and .allowed to use and operate the said 1960 Chevrolet for his own use, -pleasure and convenience; and that he was . . . operating the Said 1960 Chevrolet owned by his father pursuant to the family purpose for which it was furnished, and with the permission of 'his father . . . .” Mr. Simpson, answering, admitted that the automobile wais registered in his name but denied the .allegations off paragraph 7 of the complaint.

The evidence bearing upon the allegations of paragraph 7 of the complaint is in -all material aspects unioontradicted and tend® to establish the following facts: At the time of the accident Wayne was 18 years of age, lived .in ihis father’s home and went to- school. He had always lived with his father. Mr. Simpson was a farmer and -also operated -a filling station. Wayne worked on the farm and wias a member of his father’s household. His father was head of the house. Wayne testified .that he respected his father and was obedient to .him. Until about *604a month before the accident Wayne ¡bad owned a 1957 Chevrolet, the title to which was registered in hiis own. name (source not disclosed). In 1960 Wayne made a profit from a tobacco crop on acreage he ¡himself had rented from a pulpiwood company. — -he did the work, bought the fertilizer and paid all expenses of producing the crop. His father permitted him to keep these earnings. Wayne negotiated for the purchase oif a new 1960 Chevrolet — hois father had ¡r» part in the negotiations. The ¡down payment was the 1957 Chevrolet and $400 in cash from his tobacco crop- earnings; the balance was to. be paid out of hie tobacco ¡crop the next fall. When ¡the Motor Company refused to accept credit papers executed by Wayne, ¡because he was a minor, Mr. Simpson, at Wayne’s request, executed the note and conditional sales contract for the $1754.09 balance, 'applied 'for and took the title certificate in hiis name, and obtained in his name liability insurance. The insurance was an assigned risk policy because Wayne, 'the principal driver, was a minor. Wayne paid the premium. The registration card was mailed to Mr. Simpson who retained it in his possession. After the credit papers were signed Wayne drove the car home — the keys were delivered to him ¡and ‘he kept .them continuously thereafter. Wayne bought .tire gais .amid ¡oil for the car and stood for the repairs. He kept the oar in ¡his father’s yard, drove it to school and anywhere he wanted to go without obtaining specific permission from 'hiis father. Mr. Simpson testified that Wayne “has been- going on his own since he was 16 without asking me (sic) when he could come or go.” Neither Mr. Simp-eon nor ¡any other member -of the family, except Wayne, used tire Chevrolet. Mr. Simpson owned -a pickup truck and an Oldismofoile which anybody in the family could use. He listed the • Chevrolet for taxes along with his other- motor vehicles, but no taxes had been paid at the time of the accident. Wayne testified: “I was the only one who used the Chevrolet. It was mine.”

The court submitted to the jury ¡this (second) issue: “Was the defendant, Eddie Martin Simpson, the owner of the 1960 Chevrolet automobile for use as a family purpose 'automobile, and was Wayne Roisser Simpson using the 1960 Chevrolet automobile under such family purpose?” The jury ¡after hearing the court’s charge answered the issue “No-.”

After- defining the family purpose doctrine the judge gave the following instruction:

“. . . (I) f ¡another person had bought ¡and paid for the automobile and had it in (their control and use, and tire person in whose name it was registered was actually not tire owner and had no. control of the-use -of it, then the person, who really purchased it *605and owned it, paid for it, and had the 'Control and use of it would be the real owner.”

In applying the law to the facts of the case the judge told the jurors that in ordea.’ to answer the second issue YES they must find that:

“. . . Eddie Martin Simpson had provided this automobile for the members of the family .amid Wayne Rosser Simpson was one, that at the time he was operating (the automobile as a member of the family, (and that it was owned by Eddie Martin Simpson) •and provided for the use and 'convenience and pleasure of the family . . . .”

He further instructed the jmy:

“. . . (I) f you are not satisfied by the greater weight of the evidence that Eddie Martin Simpson was the owner of the 1960 Chevrolet automobile for use as a family purpose automobile, and that Wayne Rosser Simpson was using said 1960 Chevrolet automobile at the time in question under such family purpose, it would be your duty to answer it No'.”

The plaintiff excepted to the charge for that the judge made the application of the .family purpose doctrine to the facts of this case depend upon the father’s beneficial ownership of the Chevrolet rather than upon his right to control it.

The question raised is not that the family purpose doctrine was not submitted to' ithe jury, but that it was limited so as to be applicable only -if they found that Mr. Simpson -owned the automobile. It will be observed that the plaintiff alleges that Mr. Simpson owned the automobile, and plaintiff’s theory -of the application of the doctrine, as set out in. the complaint, is that .the car was owned by Mr. Simpson. Plaintiff 'did not note an exception to the form or submission of the issue. Issues -alise upon the pleadings. Williams v. Highway Commission, 252 N.C. 514, 518, 114 S.E. 2d 340. A reading of the record of the trial leads to the definite impression that in offering evidence and cross-examining witnesses plaintiff focused his attention on the task of proving that Mr. -Simpson owned the vehicle. The charge of the court was clearly based on the -theory set out in plaintiff’s pleadings. Plaintiff is in poor position to- complain when the judge has tried the -case in accordance with guide lines he himself has laid down. However, we Choose to disregard these valid but technical principles of procedure. We consider the matter of sufficient moment to warrant an inquiry whether, assuming that Wayne was the beneficial -owner of the auto*606mobile, there was ¡sufficient evidence to require a ¡submission of an issue as to Mr. Simpson’s liability.

It is not essential to (the application of, 'the family purpose doctrine that the me upon whom it is sought to' fix liability for the negligent operation of a family ear be the owner. In Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87, the minor daughter of male defendant won an ¡automobile in a contest and took title in her own name; isihe was a member of her .father’s household, kept the oar in her father’s garage with his automobile, and drove it only with the ¡specific' consent of her parents; .all members of the family used it 'and the father maintained it, bought the gasoline 'and oil and paid for repairs, ¡and listed and paid taxes on .it; her mother .was driving it at the time of the accident. In support of fihe ruling that the evidence was ¡sufficient to take the case to the jury ais to the father’s liability, this Court said:

“In Watts v. Lefler, 190 N.C. 722, at p. 725, this Court quotes with approval the following statement from Berry on Automobiles (4th Ed.) sec. 1280: ‘The rule iis followed in some of the stateis in which fihe question has been decided, that one who keeps an automobile for the pleasure and convenience of himself and family, is liable for injuriéis caused by the negligent operation of the machine while it is being used for the pleasure or convenience óf a member of 'his family.’
“Huddy’s Encyclopedia of Automobile Law (9th Ed.), Yol. 7-8, page 324, ¡states the rule: ‘The person upon whom it is sought to fasten liability milder the ‘family car’ doctrine must own, provide, or maintain -an automobile for the general use, pleasure, and convenience of the family. Liability under this doctrine is not confined to 'Owner or driver. It depends upon control -and use’.” (Emphasis .added.)

“It iis said to be one of the ¡indispensable requisites of the family purpose doictrine that the person on whom, it .iis sought to fasten liability under that principle owns, maintains, or provides an automobile for the general use, pleasure, and convenience of the family.” (Emphasis added.) 5A Am. Jur., Automobiles and Highway Traffic, s. 601, p. 604. “An indispensable requisite of the family purpose doctrine is that the person on whom it is sought to> impose liability own, maintain, or furnish the 'automobile, and 'have or exercise some degree of control over its use. Thus, where the head of the family does not own, maintain, or control the family automobile, he is not liable under the family purpose ¡doctrine for negligence in its use by a member of Ids •family; liability may not be imposed on the head of a family by rea*607son of bis knowledge -and consent to iits use for 'a family purpose where he does not have ownership, possession, or control of ithe vehicle, but Where the head of the family controls .and maintains the vehicle he may ibe liable under the family purpose doctrine even though he does nort own it.” 60 C. J. S., Motor Vehicles, s. 433c, p. 1070. See also the discussions in Goode v. Barton, 238 N.C. 492, 78 S.E. 2d 398; Foran v. Kallio, 355 P. 2d 544 (Wash. 1960); Richardson v. True, 259 S.W. 2d 70 (Ky. 1953); McNamara v. Prather, 127 S.W. 2d 160 (Ky. 1939); Euster v. Vogel, 13 S.W. 2d 1028 (Ky. 1929). It would seam that in Lynn v. Clark, 252 N.C. 289, 113 S.E. 2d 427, in using the expression “owned, provided and maintained” we inadvertently used the word “and” instead of “or.” So far as the facts of that ease .are concerned the inadvertence is of no importance — the defendant mother admitted '.ownership of the car.

In discussing Small v. Mallory, 250 N.C. 570, 108 S.E. 2d 852, and Matthews v. Cheatham, supra, the -commentator in 38 N. C. L. Rev. 250, 251, says:

“It seems that the true test for determining which member of the family is to be held liable under the doctrine is one of control. The basic question to be determined then is who controls the car. . . .
“The factors of -ownership and -maintenance have been used as a further guide in determining which member of the family controls'the-car. . . . (I) n Goode v. Barton it was expressly held immaterial whose funds were used to purchase the car, since liability under the doctrine ‘is not confined to owner or driver . . . [but] depends upon control and use.’ The ‘use’ referred to here can only mean that use for which the car was bought, i.e., use by the family -as -a general -purpose car. Since ownership, both legal and equitable, has been held not to- be determinative of -control, it would seem that maintenance is the more important guide in determining control and, hence, in predicting family member on whom liability will fall. In taking this view of the doctrine, North Canol-ina is in line with the weight of authority.” (Emphasis -added).

“To impose liability -under the (family purpose) doctrine it is essential to establish that the parity on Whom liability would be imposed -actually o-r impliedly authorized the use of the vehicle. It must be subject to his control. The test -is not -who- owns the vehicle but control or the right to control. Since ownership presumptively indicates the right to control, it is frequently stated as one of -the elements necessary for the application of the doctrine. But one may in fact exercise *608control and direct the use of property without in fact being the owner.” Griffin v. Pancoast, 257 N.C. 52, 125 S.E. 2d 310.

It is the l'aiw then in North Carolina that one, not the owner, who maintains or -provides lan automobile fo-r the uise, pleasure and oomven-ienee oif biis family, controls or has ¡the right ¡to control it in such use, and actually or impliedly authorizes members of his family to so use .it, is liable under the family purpose doctrine for tine negligent operation of the oar by a family member, causing injury. It has been held that the family pump ose may extend to1 .and be exercised by only one member of the .family. Goode v. Barton, supra.

In considering plaintiff’s exception to the charge, we .assume ais the exception requires us to do .and ais the jury semis to have found, that the motor vehicle was not owned by Mr. Simpson -but was owned by Wayne. There iis no evidence that Mr. Simpson maintained it or that he, or .any members of his .family other than Wayne, used or directed the use of it or exercised any control of it. Wayne was a minor son of Mr. Simpson, and at the time of the accident was a member of 'his household. The inquiry then is whether Mr. Simpson provided the Chevrolet for Wayne and had the right thereby, or for some other reason, to control its use.

It may be that the use by us of the expression “control and right to control” without some explanation .and restriction has led the bench land bar into uncertainty. The question here ais to Mr. Simpson's liability does not relate to his right to. control his 'minor son, but 'his legal right to contool the use of the 1960 Chevrolet. We are too. inclined to think of the family purpose doctrine as a sort of antidote to. juvenile delinquency or a palliative .for traditional youthful recklessness. The doctrine is not confined to. situations involving parent and minor child. It applies with equal force When the child is an adult. “It makes no substantial .difference as regards the liability of a parent (under the family purpose doctrine) whether ¡the child is a minor or an adult. The question of liability does not depend upon the relation of parent and child, ¡and the parent is under no more legal obligation to supply an automobile for the use and pleasure of a minor child than he is for the •use and pleasure of an adult child.” Watts v. Lefler, 190 N.C. 722, 725, 130 S.E. 630. A person may be liable under the doctrine for damage ¡caused by the negligence of spouse, parent, brother, sister, nephew, niece, grandchild or other of more remote kinship, or of one not of kin, provided he is a bona fide household member. Tart v. Register, 257 N.C. 161, 125 S.E. 2d 754; Manning v. Hart, 255 N.C. 368, 121 S.E. 2d 721; Westmoreland v. Gregory, 255 N.C. 172, 120 S.E. 2d 523; Small v. Mallory, supra; Stansel v. McIntyre, 237 N.C. 148, 74 S.E. 2d 345; *609 White v. McCabe, 208 N.C. 301, 180 S.E. 704; McGee v. Crawford, 205 N.C. 318, 171 S.E. 326; 60 C. J. S., Motor Vehicles, s. 433d, p. 1071.

“The mere fact of the relationship does not render a parent liable for the torts of hiis child. Liability of the parent must be predicated upon evidence that the child wias in some way acting in a representative capacity such ais would make the master responsible for the servant’s .tort, or on the ground that the parent procured, commanded, advised, instigated or encouraged the commission of the tort by his ©Mid, or that the parent was independently negligent, as in. permitting the child to have access to some dangerous instrumentality.” 3 Strong: N. C. Index, Parent and Child, s. 7, p. 529; Insurance Co. v. Faulkner, 259 N.C. 317, 130 S.E. 2d 645; Langford v. Shu, 258 N.C. 135, 128 S.E. 2d 210; Griffin v. Pancoast, supra; Lane v. Chatham, 251 N.C. 400, 111 S.E. 2d 598; Hawes v. Haynes, 219 N.C. 535, 14 S.E. 2d 503; Bowen v. Mewborn, 218 N.C. 423, 11 S.E. 2d 372. G.S. 1-538.1 hais no application in the instant case. Plaintiff does not seek to impose liability herein upon Mr. Simpson on the ground that he knew Wayne was a reckless driver. And an automobile is not an inherently dangerous instrumentality. Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; 8 N. C. L. Rev. 259. The State of North Carolina passes upon the qualifications of and issues drivers licenses to (children over 16 years of age, and as a matter of public policy places its stamp of approval on the operation by them of motor vehicles. The relationship does not alone make a parent answerable for the negligent conduct of his minor child. There must be something .besides parenthood to connect him with the wrong before Ihe may incur liability. Linville v. Nissen, supra. The question in a case such as the one at bar is whether the child, be he a 'minor or an adult, was acting for the parent, was using the automobile for the purpose for which the parent provided it. Watts v. Lefler, supra. The very genesis of the family purpose doctrine iis agency. The question of liability for negligent injury must be determined in that aspect. Vaughn v. Booker, 217 N.C. 479, 8 S.E. 2d 603. The right and duty of a parent to control .the activities of his minor child is not involved. It matters not whether Wayne was a minor >or an adult. If Mr. Simpson had the •night to control the 1960 Chevrolet, it must rest upon some ground ■other than the mere relationship of piarent and child.

Ownership of personal property ordinarily carries with it the right of control and use. Griffin v. Pancoast, supra. For the purposes of this discussion, Wayne owned the car, not Mr. Simpson. A person 'having possession of an automobile by reason of a duty or license to preserve or use it, or by bailment, or acquiescence of the owner, or other spe*610c-ia-1 right, ihais the right to con-tool its use. Examples: As executor, Chappell v. Dean, 258 N. C. 412, 128 S.E. 2d 830; -as president of corporation, Hexter v. Burgess, 184 S.E. 769 (Ga. 1936). Under the family purpose doctrine one -who provides or maintains an automobile for the pleasure >md convenience of his family is deemed to have the right, in the absence of circumstances requiring a different result, to control its use. In the -instant case there is no evidence that Mr. Simpson -maintained the oar or 'had any special possessory right with respect thereto, so tire question is whether he provided it. If he -did not, there is no- other status or -relationship which bestows upon him the right of control.

The evidence iis that Wayne personally negotiated with the Motor Company and agreed -upon the terms of purchase o-f -the automobile. He made the -down payment ¡by delivery -of his 1957 Chevrolet, title- to which was in his name, -and- payment of $400 in clash from his own earnings. When the purchase was consummated, the keys ware delivered to him, he retained them continuously and exercised -exclusive -control and use of the oar. Pie -bought the gaso-line -and oil and -took care o-f repairs. He paid the insurance premium. ITe was obligated to pay the balance of the -purchase price from his tobacco crop, hiis own earnings1. Because the Motor Company would not accept the credit instruments of a minor, Mr. Simpson, at Wayne’s request, executed the note and conditional sale contract to secure the balance of the purchase- -price, applied for and obtained' -in his name the certificate of title, registration card and liability insurance. He listed the -car for taxes. -So far as the record discloses Mr. Simpson -did not -pay one cent oil the purchase and maintenance -of the >caa’. What he provided was credit. Plis position was the same as -if he had .become co-maker on a note at the bank as an accommodation for Wayne. It was a service that a friend might have rendered a® well. If Wayne defaulted Mr. Simpson had procedures for his -protection. Tire question has been raised in- some oases whether’, by permitting a minor to use hi-s earnings in purchasing a oar, the parent was thereby providing the oar. Foran v. Kallio, supra; Robinson v. Ebert, 39 P. 2d 992 (Wash. 1955). A father is entitled to the earnings of 'an unemancipated- child. But where a father permits his minor son to work for himself and receive -the earnings of hiis -own labor to- do with ais he wishes, there has been an emancipation with respect thereto. Jolley v. Telegraph Co., 204 N.C. 136, 167 S.E. 575; Lowrie v. Oxendine, 153 N.C. 267, 69 S.E. 131; Ingram v. Railroad, 152 N.C. 762, 67 S.E. 926.

With respect to emancipation iamd the purchase-of an automobile, the facts in James v. James, 226 N.C. 399, 38 S.E. 2d 168, are strikingly parallel to th-oise ‘in- the instant case. Plaintiff’s evidence tended to show *611that a minor lived io bis father's home as a member of the household but worked elsewhere and wais permitted to receive and use his wages ais his own, he ¡bought a Ford and made the down payment by transfer of hi® old Chevrolet and some cash, 'his father executed the credit papers and took title in his name, the car was kept at hiis father’s home, he, the son, .paid the installments and the credit papers were delivered to him when the indebtedness was fully paid. Thereafter, the son married .and wais killed in. service in World War II. His father claimed ownership of the automobile. The son’s widow claimed it as an inter vivos gift from the .son, and brought this suit for its possession. The father testified that he had fed and clothed hiis son, he, the father, bought the oar and -paid one-half the cost and made repairs, and the credit papers were delivered to him when final payment was made. There was judgment for plaintiff, widow. This Court granted a new trial on ground® not pertinent here. On the question of emancipation, the Court said: “. . . (T)he defendant -argues .that during the .period covered by the installments alleged to have been paid by his eon, the latter wais a 'minor and that defendant was by law entitled to. his earnings. If that principle can be extended to property .purchased by the earnings of the son under the okcumistancas here outlined, the fact that the father, with the -full knowledge of the facts .and acquiescence therein, permitted the expenditure and purchase, if the evidence should so disclose upon a second trial, may, with other .pertinent evidence, be taken into consideration upon the question of emancipation.” In the ease at bar the facts axe not in dispute. Mr. Sianpison permitted Wayne to receive his earnings and 'did not restrict Wayne in the use thereof. It was Wayne’s decision to buy the car, he negotiated all of the teams of purchase. If /the question of emancipation is pertinent here, which is extremely .doubtful, there was, under the undisputed facts, an emancipation pro tanto.

We are of the opinion that Mr. Simpson did not .provide the automobile. His part in the transaction wais only incidental and secondary. His -acts amounted to .an accommodation, m extension of credit. The decision to purchase and acquire the car was made by Wayne. The transaction was Wayne’s idea, he managed it and took responsibility for it. In order to qualify as a provider under the family purpose doctrine one must be a principal mover, one who intends to provide for another or others the particular thing, tire automobile, and takes steps on bis own responsibility to see to the consummation of the transaction, and contributes substantially o.f his -own means toward that end without expectation of reimbursement or compensation. The court did not err in failing to submit the second issue to the jury on *612(the theory of “control or right to control,” apart from ownership in Mr. Simpson. There was ample evidence to ¡warrant the court in submitting .the issue on the theory of ownership by Mr. Simpson, especially in the light of G.S. 20-71.1. The court did so present the matter. The jury has determined the question.

It was suggested -that the 'decision we have reached would overrule Tart v. Register, supra; Elliott v. Killian, 242 N.C. 471, 87 S.E. 2d 903, and Goode v. Barton, supra. These oases are 'admittedly of the borderline variety, .but they are distinguishable from the case at bar. In the Tart case, the driver of the oar at the time of the accident was a minor. The oar was given her by her mother and uncle ais a graduation .gift. She, the minor, worked and earned wages, bought the gas and oil for the ciar and paid for the upkeep, drove the car to and from work and wherever she pleased without special permission of her mother, in whose household she lived as a member of the family. The title was in the mother’s name. The mother bad a oar of her own but also used the daughter’s car at times. We held the evidence sufficient to go to the jury as to the liability of the mother under the family doctrine. It will -be observed that the mother provided the oar for the use of the daughter, and the mother also used the oar without the specific consent of the daughter. In Elliott a minor, member of his father’s household, purchased a, oar and made a part of the down payment — his father paid a part. His father executed credit papers, took title and insurance -in his, the father’s, name, paid part of the insurance premiums, paid some of the installments on the note, and drove the car at times. The oar was also used at times for the benefit of other family members'. Obviously there was evidence that the father was ia principal in providing the oar -and exercised control. In Goode the 'minor son of the adult defendant was a student at the University. The car was purchased by the father, with funds belonging to- the ison. The title certificate was in the name of the father. The oar was maintained with funds provided by the father.

At beet the family purpose doctrine is an anomaly in the law. This Court was reluctant to adopt it ¡initially. As the use of motor vehicles increased the Court gradually expanded the application of the doctrine. We are not disposed to extend the ¡doctrine in this State ¡beyond the limits ¡already reached. Grindstaff v. Watts, 254 N.C. 568, 574, 119 S.E. 2d 784. The importance of the doctrine in North Carolina has been greatly reduced by the Financial Responsibility Acts. G.S., Ch., 20, arts. 9 and 9A. See 38 N. C. L. Rev. 249, footnote 4.

(2). This brings us to' a consideration of plaintiff’s exceptions bearing upon the third issue, McOants’ negligence.

*613McOants offered mo evidence. Over the plaintiff’s obj action, followed by ia motion to strike, the 'court .permitted the investigating officer to testify on 'cross-examination, in answer to a question by counsel for Simpson, as follows:

“Mr. McOants said that he was proceeding up a hill behind a oar, which 'be estimated about eight car lengths behind this vehicle. (He said) ‘suddenly I was aware of the vehicle coming over the hill from the opposite direction meeting ns. He was on (his side ■and everything seemed O. K. until the .ear (ahead of me swerved right toward the ditch, .and I realized -there was a second vehicle approaching over the hilltop, and in my lane. This pair of headlights approaching seemed to be even to the right of the -center of my lane. It all happened so suddenly that I don’t -recollect ¡having time to swerve .toward -the -ditch. I think that the fact that his headlights were so far over in- my lame I could not swerve right’.”

Thereafter, without objection, the officer said:

“Mr. M-cCants .indicated that he was following behind the Buie vehicle proceeding in a southerly direction proceeding up a -hill .behind a car; that the car 'in front ¡swerved to- the right toward the ditch, then he saiw there wais a second- vehicle ahead of him and that ■the vehicle ahead o-f him was coming towards -him. . . . My report indicates that Mr. McOants noticed' the danger of the accident -one .hundred feet ahead and that he was going fifty -miles per hour -at that time. Mr. MoCants told me he wa-s going approximately fifty miles per hour at the time of the collision.”

J. L. Jones, a witness for plaintiff, also- testified without -objection:

“He (McOants) told me he was following -the taallights of a car -and they disappeared and the headlights was right in ibis face, and that he did not have time to- put on brakes.”

The patrolman's recitation of McOants’ narrative of events- preceding the accident, to which plaintiff -objected, was cleanly incompetent as hearsay. Since McOants did not testify, it wais not corroborative. It was not .an 'admission against his own interest; it was a self-serving declaration which, if true, completely exonerated McOants of any blame for the -accident. Although offered -by the defendant Simpson by way of .cross-examination, it d-i-d not tend to exonerate -Simpson of negligence; it tended only to contradict plaintiff’s case -against McCants. Brothers v. Jernigan, 244 N.C. 441, 94 S.E. 2d 316; Stansbury: *614North Carolina Evidence, 2d Ed. ss. 140, 167; 4 Wigmore on Evidence, 3d Ed., s. 1048.

However, the substantially similar statements made by McOants thereafter admitted without olbj action cured (the error. Strong, North Carolina Index, Appeal and Error, e. 41; Hall v. Atkinson, 255 N.C. 579, 122 S.E. 2d 200. The other exceptions relating to the exclusion of evidence have ¡been carefully considered. They are without merit.

The ¡charge oif the court, when read contextually, properly presented the law applicable to plaintiff’is contention that McOants was following the Buie oar too closely without keeping a proper lookout. On all the evidence, the jury concluded that the negligence of young Simpson in attempting to pass the tnactor-trailer in the face of oncoming traffic was the ¡sole proximate cause oif toils unfortunate collision. As to toe defendant McOants, plaintiff has failed to show any prejudicial error in toe trial below.

In toe trial below we find

No error.

Shaep, J.,

dissenting as to toe defendant Eddie Martin Simpson. The family purpose doctrine has .been stated and restated many times by this Court ¡add, collectively, toe cases define it as follows.: Where toe head of ¡a 'household owns, keeps, provides, or maintains an automobile for toe convenience and pleasure of his family, he iis liable for injuries caused by -the negligent operation o;f toe vehicle by any member of his family who .is using toe vehicle for toe purpose for which -it was provided. Watts v. Lefler, 190 N.C. 722, 130 S.E. 630; Grier v. Woodside, 200 N.C. 759, 158 S.E. 491.

The necessity of affording greater protection to toe ever increasing number of persons injured on our highways originated the family purpose do'ütrine. The rationale is that a father, or other head of a .household who has provided an automobile for toe pleasure .and convenience of 'his family, has made their transportation for this purpose hiis business, and the family-member operator is regarded .as representing toe family-member provider in such use. The result puts toe financial responsibility of the paterfamilias -behind toe vehicle he has furnished for his family’s use while it is being thus operated. Dependent members of a family ¡are most often financially irresponsible ¡and toe minor member’s, like Wayne Simpson in this case, unable to- obtain adequate insurance ¡coverage.

Under toe .pleadings and evidence, as toe opinion makes ¡clear, Mr. Simpson can ¡be held liable in this case ¡only if the family purpose doctrine is -applicable to the Chevrolet .which Wayne was operating *615at the time he negligently injured the plaintiff. The facts relating to its purchase, title, and use are fully set out in the majority opinion and ■are not in dispute. Therefore, the legal consequences to Mr. Simpson of Wayne’s negligence would be the subj act of a peremptory instruction to' the jury.

It is established that liability under the family car doicitrine does not depend upon 'ownership -of the 'automobile if -it is subject to the control off the head of the household. Therefore, the fact that Mr. Simpson never attempted to- control either the car or the comings or goings of his son is not determinative of his legal liability for plaintiff’s injuries. “The test is not who owns the vehicle but control or the right to control.” (Italics mine). Griffin v. Pancoast, 257 N.C. 52, 125 S.E. 2d 310; Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87; Goode v. Barton, 238 N.C. 492, 78 S.E. 2d 398; Elliott v. Killian, 242 N.C. 471, 87 S.E. 2d 903; Tart v. Register and Flowers v. Register, 257 N.C. 161, 125 S.E. 2d 754. Therefore, the decisive question here is whether Mr. Simpson had the right to control the use of the Chevrolet which Wayne was driving on the occasion in question.

This right is -in mo wise dependent upon his right to control his minor ison and, under this evidence, his liability for Wayne’s negligent operation of the automobile would have been unchanged had Wayne been an ■adult. Of course, in the exercise of hie parental authority, Mr. Simpson did have the right to control Wayne’s use of the automobile. Whatever the actualities, the legal right of a parent to' 'control his minor child is in no degree 'diminished or nullified when the child becomes the owner of an automobile. “A parent can, and often should, forbid his minor child to use ian automobile . . . the entire ownership of which may rest in the minor.” Robinson v. Ebert, 180 Wash. 387, 39 P. 2d 992. Certainly, the right .to control his child does not give a father the unrestricted right to control the child’s property. Because a father could forbid his son to drive 'the son’s car on a Saturday night, it does not fallow that he could legally require the son to turn the car over to' another member of the family for the evening. However, in- this case, we are not concerned with the liability of a father for the tort of his son while operating an 'automobile owned and maintained solely by the minor son. In such a case this Court 'has -held the family purpose doctrine inapplicable. Griffin v. Pancoast, supra.

Here, Wayne kept the keys to the Chevrolet but his father held the legal title to it. The registration card and the insurance were in Mr. Simpson’s name. He listed it for taxes in 'his name. Although Wayne had made the down payment, Mr. Simpson had primarily obligated himself to pay $1,754.09, the balance of the purchase price due in the *616fall of 1961. The holder of (the mote and 'conditional sales -contract securing that balance certainly looked -to- Mr. -Simpson, as the principal obligor and not as an accommodation endorser. Wayne’s only hope of paying for the car -was hi-s expectation -o-f -a profitable tobacco crop in 1961. Hio-wever, hie 1960 crop /had netted him only four (hundred dollars.

In ■the most practical -sense, Mr. Simpson had provided this automobile for 'his son’s pleasure .and convenience -and had made it possible for him -to operate it upon the highways -o-f the -state. To hold otherwise iis to -be unrealistic. Without -bis father’s credit -and permission, W-ayn-e could neither have -acquired the automobile, maintained it, nor kept it at hi-s father’© home where he lived and wais supported as an unemanaipated -child. Indisputably, Mr. Simpson wanted hi-s s-on to enj o-y the status -and -convenience which the unrestricted us-e of -an- automobile gives -a teenager today. Therefore, Wayne’s -operation of the vehicle -for that purpose became Mr. Simpson's business when he provided hi-s son .with the use o-f a -Chevrolet registered in Mr. Sim-pson’s name, insured in his name, and obtained with hi-s -credit. In my opinion, as long as Mr. Simpso-n allowed title to- the automobile to remain in hiis name for .that purpose, he had tire right to- ioo-ntro-1 it even- though equitably he -and Wayne were j-o-in-t owners of the vehicle.

“The fact that a parent has titl-e to- a motor vehicle is, in -and of itself, sufficient to justify the -application of the family purpose doctrine Where -the doctrine is otherwise applicable, -even -though the vehicle -has been entirely paid f-or by tire child- in question, and the child has the beneficial ownership -thereof.” 8 Am. Jur. 2d, Automobiles and Highway Traffic § 590.

It -does not take -a vehicle out o-f the scope of the family car doctrine (that it -was provided for one member of the family -alone. Goode v. Barton, supra. Surely, if a wealthy -father with eight -children.- living in hie household .provided an .automobile for each child, it -could not be successfully -contended that each c-ar -did not -come within the family purpose -doctrine. This doctrine is n-ot restricted to- -a single car.

The evidence in this -case illustrates graphically the factors which originally brought the family purpose doctrine- into- being as an instrument of public policy. 38 N.C.L. Rev. 249; McCall, The Family Automobile, 8 N.C.L. Rev. 256. It -suggests ¡that the -abdication by parents of the right and duty to -control their teenage children, whom they enable to- acquire automobiles- which they c-anno-t afford -and lack the -discretion to o-per-ate safely, may -be the explanation of the following istaitisticis furnished by the North Carolina Department of Moto-r Vehicles:

*617In 1960, 32.11 percent of all drivers involved in motor vehicle accidents in •this State were .in the 16 through 24 -age group. Nationwide, tlhe percentage for this age group wais 28.86 percent. In 1961, persons under 20 years old 'composed 6.64 percent of the 'drivers in this State but they bad 14.29 percent of the accidents. More drivers in the 16 to 20 age bracket were killed than in any other. In the nation, traffic accidents are the leading cause of deaths among persons between the ages of 15 and 24.

Since this Court first recognized it in Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096 (1913) (See Griffin v. Pancoast, supra, p. 55) it has said many times that the family purpose doctrine is “firmly embedded on the law of this 'State.” Grindstaff v. Watts, 254 N.C. 568, 119 S.E. 2d 784; Ewing v. Thompson, 233 N.C. 564, 65 S.E. 2d 17; Elliott v. Killian, Goode v. Barton, supra. However, the majority now declares that the 'doctrine is an anomaly in the law which the Court is not disposed to extend; that the Court wais reluctant to adopt it initially; and that its importance has been greatly reduced by 'the Financial Responsibility Act. The plaintiff in this case, made a paraplegic by the gross negligence of Wayne, eanniot be expected to agree. The inisurence on Wayne’s Chevrolet was an assigned risk “because Wayne, the principal driver, was a minor.” Five thousand dollars was the limit of the coverage.

To hold Mr. Simpson liable would not extend the doctrine beyond the limits we have already reached. This case comes within the rule of Tart v. Register and Flowers v. Register, Elliott v. Killian, and Goode v. Barton, supra, and it cannot be distinguished from Register. In Register, the mother held1 title to the automobile which she and .another had given her minor daughter. The daughter bore the expense of the ear. The fact that the mother occasionally used the daughter's car instead of her own, could miahe no difference in her liability for the daughter’s negligent operation of it. In this case, can it be doubted that Mr. Simpson would have used the Chevrolet had he ever needed an automobile at a time when his Oldsmobile was unavailable? It is noted that in this case Mr. Simpson’s credit is presently providing the oar for Wayne whereas in Register the another’s provision was a fait accompli when she gave the car (completely paid for so- far as the record in that case reveals) to the daughter.

The majority opinion defines la provider as follows: “In order to qualify as a provider under the family purpose doctrine one must be a principal mover, one who intends to provide for another or others the particular thing, the automobile, and takas steps on his own responsibility to see to the consummation of the transaction, and contributes *618substantially of ibis own means toward that end without expectation of reimbursement or compensation.”

This definition appears to have been tailored to fit the mother in Register. It fails to fit Mr. Simpson only because it includes the requirement that a provide!' must not expect reimbursement or compensation. Tims does the majority seek here to avoid the result of Register. It is 'assumed that iby the descriptive phrases, “.a principal mover” and one who “takes ¡steps on his own responsibility,” are not meant to suggest or require that the idea of purchasing the car must originate with the provider. No doubt many a father, who' never thought to' make such an expenditure, has 'Succumbed to the importunities and blandishments of a son or daughter who* thought the family needed another car.

Certainly, in a legal sense, Mr. Simpson 'became -tine principal mover and he took steps on his own responsibility when he consummated the purchase of the Chevrolet by signing the note iand conditional sales contract to secure the balance due on the automobile, when he had the title issued in his name .and applied for the license, and when he applied for the insurance — an assigned risk. Incidentally that insurance policy would cover Wayne, not as the owner of the ear, but because he was operating it with the consent of the named insured, Mr. Simpson!

Under the 'majority’s definition of .a provider, in the absence of am admission, it will :be extremely difficult for a plaintiff ever again to prove that 'an automobile registered in the fatheris name, but used by a son for bis own, pleasure and convenience, i© a family purpose car. All that the solvent, inadequately insured father need do¡ to. avoid liability is to assert that he paid for the car, took title in his own name, and made it available for the use of his teenage son (an assigned risk!) upomtihe boy’s promise to reimburse him some day. The law would not hold the son to such a contract. The father could no more recover the purchase price of the car from a minor son who chose to disaffirm the contract than could a dealer who had sold an automobile to a minor. Should this Court permit such an unenforceable contract to nullify the family purpose doctrine which was created in the public’s interest to protect it from financially irresponsible minnns? I do not think so..

In failing to make the application oif the family purpose doctrine dependent upon the .father’s right to. control the automobile .being operated by Wayne as distinguished from his beneficial ownership therein, it is my opinion that the trial judge committed error requiring a new trial as to the defendant Eddie Martin Simpson. I concur in the majority opinion that there is no error in the trial as to McCants.

PARKER & Bobbitt, JJ., join in the dissenting opinion.